In
Roberts v. Pointer,
The facts of this case show that Roberts, Michael Pointer, and Debra Pointer were involved in an automobile accident for which Rоberts’ liability is undisputed. On March 28, 2008, the trial court entered a consolidated pretrial order in which each party identified individuals as witnesses that “may” or “will” testify at triаl and “reserved the right to call additional witnesses provided their names and addresses [were] provided to [the other party] with sufficient notice prior tо trial.” Five weeks prior to trial, Roberts filed an amendment to the pretrial order, adding to the “may call” list an expert witness, Dr. Stephen C. Allen (“Dr. Allen”). Two weeks bеfore trial, Roberts moved for a continuance because Dr. Allen would be unavailable to testify during the week set for trial. The motion stated that Dr. Allen would be “testifying regarding the appropriateness of [Mr. Pointer’s] treatment and whether the services provided and charges incurred were usual and customary.” One week later, the trial court heard and denied Roberts’ motion during a telephone conference with both parties that was not transcribed. As a result, thе record contains neither the arguments nor the evidence presented to the trial court in favor of or against the continuance. Later in the trial proceedings, the trial court made a determination that the Pointers could call a lay witness, Reverend Osie Wilson, to testify at trial, despite the faсt that Reverend Wilson was added as a witness following the filing of the pretrial order. 1 Roberts, both at the trial court and on appeal, argued that the trial court unfairly allowed the testimony of Reverend Wilson, whom the Pointers had only disclosed one week prior to trial, while excluding the testimony of Dr. Allen, whom Roberts hаd disclosed five weeks prior to trial. In response to this argument, the trial court responded by stating that it was allowing the Pointers’ witness because, although Reverend Wilson *152 was not specifically identified in the order, he was part of a “general class of person[s]” mentioned. Roberts at 533. Further, the trial court commentеd that “there’s a difference in calling a lay witness to testify ... and in calling an expert that’s not identified or provided for in the pretrial order.”
Considering the faсts, the Court of Appeals accepted Roberts’ characterization of the trial court’s actions, concluding that “[i]n denying the motion for continuance, the trial court essentially excluded [Dr. Allen].” Roberts at 533. The Court of Appeals deduced from the brief mention of the telephonic conferencе in the transcript that the trial court excluded Dr. Allen as a witness “apparently because he was not mentioned in the pretrial order.” Id. (emphasis supplied). Thereaftеr, the Court concluded that such an exclusion was an abuse of discretion, reasoning that “it was not an appropriate remedy . . . [and t]he only appropriate remedy was postponement of trial or mistrial.” This conclusion is not correct for two reasons.
First, Roberts’ failure to have the teleрhonic conference transcribed is fatal to his appellate claims. Any evidence and argument made to the trial court regarding this matter has nоt been preserved for review. There is no record of the evidence or arguments considered by the trial court in determining how to exercise its discretion.
Zachary v. State,
Second, even if we were to accept Roberts’ characterization of the unspoken record, his contentions would still fail to show an abuse of the trial court’s discretion in denying his motion for continuance. Both Roberts and the Court of Appeals have mischaracterized the trial court’s denial of a cоntinuance as the decision to allow or exclude a witness. “The trial court’s discretion in granting or refusing a continuance will not be interfered with by the apрellate courts unless it clearly appears that the judge abused his discretion.”
Bandy v. Henderson,
For all of the reasons set forth above, we must reverse the judgment of the Court of Appeals and affirm the judgment of the trial cоurt.
Judgment reversed.
Notes
The trial transcript contains two brief colloquies regarding Roberts’ objection over Reverend Wilson’s testimony. In the first, the trial court stated: “Okay, I’ll allow [Robеrts] to speak to [Wilson] before he testifies certainly and then see if there is anything specific you have to object. I think there’s -1 think his name was not identified, I think thеre’s a difference in calling a lay witness to testify as to essentially church involvement or character, and in calling an expert that’s not identified or рrovided for in the pretrial order.” Later in the trial, the following exchange occurred:
[Roberts]:... I attempted to add a witness approximately six weeks ago and was denied the opportunity because it was not specifically listed in the pretrial order. So I would raise an objection to any witness thаt was ... not specifically listed in the pretrial order.
THE COURT: I think -1 do note that. I think you were attempting to add an expert witness, correct? A doctor to review medical records? ...
I think [Reverend Wilson’s] name was not identified, I think the general class of person was identified. I think there’s a difference in calling a lay witness .. . and in calling an expert that’s not identified or provided for in the pretrial order.